Reactions to ACA Decision

Four scholarly reactions to last week’s decisions from the WSJ Law Blog:

This was a paradigmatic statesmanlike decision, one that will help preserve the Court’s institutional stature.

Today was a great day for constitutional principle, not such a great day for sound health care policy.

It’s enormously gratifying that the Chief Justice, who once was one of my star students in constitutional law and whose views count while of course mine don’t, saved the day — and perhaps the Court, whose place as a legal institution had begun to fall into dangerous disrepute.

The end product was — not to put too fine a point on it — brilliant. It is brilliant in a way that parallels another landmark decision, Marbury v. Madison.

Roberts Walks a Tightrope

The New York Times outlines yesterday’s Supreme Court’s decision upholding most of the Affordable Care Act by linking brief summaries of the components of the decision to the sections of the decision in which they appear. My previous blog posts do not address the Act’s constitutionality under Congress’s power to tax, in part because–as I said yesterday–I’m not conversant with the tax power precedent. Another significant reason I did not address the tax power arguments is that the Obama administration did not advance them, either when Congress passed the law or during oral arguments in March. Chief Justice Roberts latches onto them “because we have a duty to construe a statute to save it, if fairly possible . . . Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” In other words, Roberts is doing his damndest to construe the law as a valid exercise of Congress’s power.

The decision rejects the pro-ACA arguments resting on the Commerce and Necessary and Proper Clauses. But Roberts reaches into his hat and pulls out the rabbit, opining that the Individual Mandate is not a penalty but a valid exercise of Congress’s power to tax. It’s as close to deus ex machina as I can recall in a Supreme Court decision, legalistic ju-jitsu–because earlier in his opinion Roberts decides the Individual Mandate is not a tax for the purposes of the Anti-Inunction Act, which requires that one must first pay a tax before filing a suit challenging its validity. The Scalia, Kennedy, Thomas, and Alito dissent is having none of it: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Individual Mandate is Constitutional

New York Times 28-Jun-12: “Supreme Court Lets Health Law Largely Stand.”

I was both wrong and right about the Commerce Clause argument against the individual mandate: wrong that the better argument supports its constitutionality, right that the commerce clause argument is a close call. The Court held that the mandate exceeds Congress’s Commerce Clause power and is not valid under the Necessary and Proper Clause.  The Court instead construed the penalty imposed on individuals who do not purchase health insurance to be a valid exercise of Congress’s taxing power. I’ll cheerfully admit I’ve thought little about this argument, mostly because my insight into the Constitution’s taxing provisions is slightly better than my understanding of string theory.

My quick reading of the Court’s syllabus of the opinion showed me that a quick reading of the opinion will not suffice to understand its many components. It’s one of those opinions where I will need to map in a matrix the outcome of each of the issues. That’s not happening this afternoon. The sun is (mostly) out and my individual mandate requires completing my projects and errands.

Waiting for the Court

I’m not sure I’m ready for today’s Supreme Court ruling on the Affordable Care Act–or, more precisely, for the howls and outrage that will arise from whichever side loses the individual mandate argument. I’ve been talking about it with my coffee buddies for the past few years. Most were–are–incredulous that there’s even a question about the ACA’s constitutionality. Of course the federal government can require everyone to buy health insurance! Health insurance is a good thing, like requiring people to wear seat belts, therefore the government can compel us to buy it! (One thing I’ve learned from teaching law for 15 years–most U.S. citizens have the faintest understanding of Federalism.) I believe the better arguments favor upholding it–I think the federal government can use its Commerce Clause powers to require us to buy health insurance because when we don’t buy health insurance we always shift our health care costs to third parties (hospitals, the government, people who do have health insurance), and thus the cumulative effect on interstate commerce of personal decisions not to buy health insurance is substantial–but I also believe there are legitimate, straight-faced arguments one can make against the law. (Not a popular position in the liberal circles I frequent or media I consume.)

Despite what pundits and Supreme Court justices say, decisions like this are not about applying objective rules, about “calling balls and strikes.” Indeed it’s to our national shame that Congress and the press didn’t call Chief Justice Roberts on this fallacious metaphor during his confirmation hearings. The strike zone is not objective. Umpires do not interpret it uniformly. The best baseball players can hope for is that the plate ump applies the strike zone consistently during a game. It is the job of Supreme Court justices to interpret and apply constitutional principles, which requires making policy decisions about the relationship between the government and the governed. That’s not being an activist judge; it’s being a Supreme Court judge. It’s inevitable that a justice’s political views will shape his or her interpretation of the Constitution. The best we can hope for is that a justice’s decisions are governed by consistent interpretation of constitutional principles, by stare decisis and profound respect for the Rule of Law, and by recognition that the Constitution was intended to be a living document (this rules out Justice Thomas.) There is tremendous tension between these three forces–which is why we lawyers say reasonable people can disagree. Unfortunately, when it comes to the national political discourse reasonable people have been hunted to extinction. I’m not eager for the nasty aftermath of the ACA decision, however it comes down.

Commerce Clause Arguments

The media is filled with articles and reports on this week’s Supreme Court arguments on the Affordable Care Act. This WSJournal article (subscription required) efficiently summarizes the arguments and justices’ questions. Definitions of the relevant economic activity reveal a key distinction between the law’s challengers and supporters–the former focus on the market for health insurance, the latter on the market for health care. The two are obviously connected but the law’s opponents argue that one can be in the market for the latter without being in the market for the former. The media consensus is that the law is in trouble–on CNN Jeffrey Toobin called the Supreme Court session “a train wreck for the Obama administration–and that Justice Kennedy is the key.

ObamaCare at the Supreme Court

Beginning today the Supreme Court is hearing three days of arguments on the constitutionality of the Affordable Care Act. The first issue is whether the Court can even consider the law’s constitutionality now–a legalistic argument that in the words of a lawyer challenging the law is “a kind of practical joke that the court is playing on the public.” The 1867 Anti-Injunction Act requires that a tax can only be challenged after it has been paid. The ACA’s penalty–or is it a tax?–for failing to obtain health insurance does not go into effect until 2014 and would not be payable until federal tax returns are filed in 2015, which could mean the challenge must wait. It’s an argument only a lawyer could love, with the twist as to whether the payment imposed for failure to obtain health insurance is a tax. As the NYTimes explains:

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax.

Mr. Verrilli, representing the Obama administration, walks a fine line. He has told the court that the administration wants a prompt ruling on the health care law and that the 1867 law should not stand in the way. Yet the administration does not want to damage its ability to rely on the 1867 law in other cases.

There are other complications. Mr. Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.

Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law — a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.” (emphasis additional)

As I said, it’s an argument only a lawyer could love.

Pro-ACA Op-Ed

Yesterday the New York Times ran an Op-Ed piece by Harvard Law Professor Einer Elhauge arguing for the constitutionality of the Affordable Care Act under the commerce and necessary and proper clauses. He concludes that “Congress can mandate the purchase of health insurance as long as it conditions that mandate on engagement in some commercial activity” and “even if the [insurance purchase] mandate were not directly authorized under the commerce clause, it is authorized under the necessary and proper clause as rationally related to the constitutional exercise of the power to regulate premiums and prohibit rejecting the sick.”

Judge Stays Order Invalidating the ACA

The Florida federal court judge who struck down the Affordable Care Act on January 31 has stayed his order enjoining enforcement of the law until the U.S. Supreme Court rules on its constitutionality.  Judge Vinson explains why he stayed his order :

I cannot say that the defendants do not have a likelihood of success on appeal. They do. And so do the plaintiffs. Although I strongly believe that expanding the commerce power to permit Congress to regulate and mandate mental decisions not to purchase health insurance (or any other product or service) would emasculate much of the rest of the Constitution and effectively remove all limitations on the power of the federal government, I recognize that others believe otherwise. The individual mandate has raised some novel issues regarding the Constitutional role of the federal government about which reasonable and intelligent people (and reasonable and intelligent jurists) can disagree. To be sure, members of Congress, law professors, and several federal district courts have already reached varying conclusions on whether the individual mandate is Constitutional. It is likely that the Courts of Appeal will also reach divergent results and that, as most court watchers predict, the Supreme Court may eventually be split on this issue as well. Despite what partisans for or against the individual mandate might suggest, this litigation presents a question with some strong and compelling arguments on both sides. Ultimately, I ruled the way I did, not only because I believe it was the right overall result, but because I believe that is the appropriate course for a lower court to take when presented with a (literally) unprecedented argument whose success depends on stretching existing Supreme Court precedent well beyond its current high water mark and further away from the “first principles” that underlie our entire federalist system. Under these circumstances, I must conclude that the defendants do have some (sufficient for this test only) likelihood of success on appeal.

Judge Vinson also concluded that it “would be extremely disruptive and cause significant uncertainty” to stay implementation of the Act pending appeal, and that other relevant support granting the stay.

Tribe on the ACA

This Op-Ed piece by Larry Tribe, constitutional law scholar and Harvard Law School professor, explains why “[t]here is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb”–in other words, why they will uphold the constitutionality of the Affordable Care Act.

Legal versus Political Issues

And here’s my response to a friend who asked if the Florida decision was a “clear case of judicial activism and over-reaching with a political agenda.”

The challenge to the ACA raises serious constitutional law questions.  The results have been politicized, but the issue goes to the heart of the Constitution’s allocation of power among the states, the federal government, and the people.  Legal analysis requires putting aside agreement with the ends of health care reform and asking this question:  if I disagreed with the operation of the law, would I still believe it was within Congress’s power to pass it?  If Congress decided national defense and public safety required every competent non-felon adult in the U.S. to own a handgun, would it be within Congress’s power under the commerce clause? (There may be other constitutional flaws to this hypothetical but I’m making this up on the fly to frame the question.) The courts that have considered these challenges have so far split on partisan lines, but it ignores the legitimacy of the constitutional issues to assume nothing more than party affiliation drives the outcome.